Registration No. 333-77657
As filed with the Securities and Exchange Commission on October 23, 2002
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Citizens South Banking Corporation
(Exact Name of Registrant as Specified in its Charter)
Delaware 54-2069979
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
245 West Main Avenue
Gastonia, North Carolina 28052
(Address of Principal Executive Offices)
Paul L. Teem, Jr.
245 West Main Avenue
Gastonia, North Carolina 28052
(Name and Address of Agent for Service)
Citizens South Bank 1999 Stock Option Plan
(Full Title of the Plan)
Copies to:
Kim S. Price John J. Gorman
President and Chief Executive Officer Luse Gorman Pomerenk & Schick
Citizens South Banking Corporation 5335 Wisconsin Avenue, N.W., Suite 400
245 West Main Avenue Washington, D.C. 20015
Gastonia, North Carolina 28052 (202) 274-2000
(704) 868-5200
PART I
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
This Post-Effective Amendment No. 1 to the Registration Statement on
Form S-8 (No. 333-77657) is being filed pursuant to Rule 414 under the
Securities Act of 1933, as amended (the "Securities Act"), to reflect the
completion of the reorganization transaction by Citizens South Banking
Corporation, a Delaware corporation (the "Registrant"), pursuant to which the
Registrant became the successor to Citizens South Banking Corporation, a Federal
corporation ("Citizens Federal"). The stockholders of Citizens Federal approved
the plan of reorganization at a special meeting of stockholders on September 25,
2002. By virtue of the reorganization and through a series of merger
transactions, each share of issued and outstanding common stock of Citizens
Federal was exchanged for 2.1408 shares of common stock of the Registrant.
In accordance with paragraph (d) of Rule 414 under the Securities Act,
the Registrant expressly adopts this registration statement as its own
registration statement for all purposes of the Securities Act and the Securities
Exchange Act of 1934, as amended. The applicable registration fees were paid at
the time of the original filing of this registration statement.
PART II
Item 3. Incorporation of Documents by Reference
All documents filed by the Company pursuant to Sections 13(a) and (c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this registration statement and be part hereof from the date of
filing of such documents. Any statement contained in this Registration
Statement, or in a document incorporated by reference herein, shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein, or in any other subsequently filed
document which also is incorporated by reference herein, modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
The following documents, which have heretofore been filed by the
Registrant with the Securities and Exchange Commission ("SEC") or assumed by the
Registrant as the successor issuer to Citizens Federal, are incorporated by
reference herein and shall be deemed to be a part hereof:
a) Annual Report on Form 10-KSB filed with the SEC on March 29, 2002;
b) Forms 10-QSB for the quarters ended March 31, 2002 and June 30,
2002; and
c) The description of the Registrant's common stock contained in the
Registrant's registration statement on Form 8-A filed with the SEC on
September 27, 2002.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
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Item 6. Indemnification of Directors and Officers
Article TENTH of the Certificate of Incorporation of Citizens South
Banking Corporation (for purposes of this Item 6, the "Corporation") sets forth
circumstances under which directors, officers, employees and agents of the
Registrant may be insured or indemnified against liability which they incur in
their capacities as such:
TENTH:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent or in any other capacity while serving as a Director, Officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article
TENTH shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a Director or Officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections A and B of this Article TENTH shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a Director, Officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in
full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought
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by the indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, Officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated by reference
from the 10-K into this Registration Statement (unless specified otherwise):
4.1 Form of Common Stock Certificate (Incorporated by
reference to the Registrant's Registration Statement
on Form S-1 filed with the SEC on June 28, 2002).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. as to
the legality of the shares of common stock registered
hereby.
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C.
(contained in the opinion included as Exhibit 5).
23.2 Consent of Cherry, Bekaert & Holland, L.L.P.
24 Power of Attorney (contained in the signature page to
this Registration Statement).
99.1 Citizens South Bank 1999 Stock Option Plan (formerly
the Gaston Federal Bank 1999 Stock Option Plan)
(Incorporated by reference to the Registrant's Proxy
Statement filed with the SEC on March 9, 1999)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include any
material information with respect to the plan distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement;
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2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the Plan; and
4. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Gastonia, State of North Carolina, on this 23rd day of October, 2002.
CITIZENS SOUTH BANKING CORPORATION
Date: October 23, 2002 By: /s/ Kim S. Price
--------------------------------
Kim S. Price, President and
Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Citizens South Banking
Corporation (the "Company") hereby severally constitute and appoint Kim S.
Price, as our true and lawful attorney and agent, to do any and all things in
our names in the capacities indicated below which said Kim S. Price may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the registration of shares of common
stock to be issued pursuant to the Citizens South Bank 1999 Stock Option Plan,
including specifically, but not limited to, power and authority to sign for us
in our names in the capacities indicated below the Post-Effective Amendment No.
1 to the Registration Statement on Form S-8 and any and all amendments
(including post-effective amendments) thereto; and we hereby approve, ratify and
confirm all that said Kim S. Price shall do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 the Registration Statement on Form S-8 has been
signed by the following persons in the capacities and on the date indicated.
Signatures Title Date
/s/ Kim S. Price President, Chief Executive October 23, 2002
- -------------------------- Officer and Director (Principal
Kim S. Price Executive Officer)
/s/ Gary F. Hoskins Senior Vice President, Treasurer October 23, 2002
- -------------------------- and Chief Financial Officer
Gary F. Hoskins (Principal Financial and
Accounting Officer)
/s/ David W. Hoyle Chairman October 23, 2002
- --------------------------
David W. Hoyle
/s/ Ben R. Rudisill, II Vice Chairman October 23, 2002
- --------------------------
Ben R. Rudisill, II
/s/ Martha B. Beal Director October 23, 2002
- --------------------------
Martha B. Beal
/s/ Ronald E. Bostian Director October 23, 2002
- --------------------------
Ronald E. Bostian
/s/ James J. Fuller Director October 23, 2002
- --------------------------
James J. Fuller
/s/ Charles D. Massey Director October 23, 2002
- --------------------------
Charles D. Massey
/s/ Eugene R. Matthews, II Director October 23, 2002
- --------------------------
Eugene R. Matthews, II
EXHIBIT INDEX
Exhibit Number Description
4.1 Form of Common Stock Certificate (Incorporated by reference to
the Registrant's Registration Statement on Form S-1 filed with
the SEC on June 28, 2002).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. as to the
legality of the shares of common stock registered hereby.
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (contained in
the opinion included as Exhibit 5).
23.2 Consent of Cherry, Bekaert & Holland, L.L.P.
24 Power of Attorney (contained in the signature page to this
Registration Statement).
99.1 Citizens South Bank 1999 Stock Option Plan (formerly the
Gaston Federal Bank 1999 Stock Option Plan) (Incorporated by
reference to the Registrant's Proxy Statement filed with the
SEC on March 9, 1999)